Maaka v Police [2015] NZHC 2232 (17 September 2015)

Last Updated: 13 October 2015

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000033 [2015] NZHC 2232

BETWEEN	OWEN MAAKA Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	8 September 2015
Appearances:	S Brickell for Appellant Z R Hamill for Respondent
Judgment:	17 September 2015

JUDGMENT OF COURTNEY J [Appeal against conviction]

This judgment was delivered by Justice Courtney on 17 September 2015 at 3.30 pm

pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

_{Date..............................}

MAAKA v NZ POLICE [2015] NZHC 2232 [17 September 2015]

Introduction

[1] Owen Maaka went to The Warehouse in Takanini and stole a phone. Before he left the store a Warehouse loss prevention officer, Mr Whitehira, challenged him. Mr Maaka ignored Mr Whitehira and walked out of the store. Mr Whitehira followed him and alleged that Mr Maaka assaulted him when they were outside the store.

[2] Mr Maaka was charged with assault with intent to facilitate the commission of an imprisonable offence (theft).¹ He was convicted following a judge alone trial before Judge Lovell-Smith in the Papakura District Court.² Mr Maaka appeals the conviction on the ground that the Judge erred in her assessment of the evidence to such an extent that there was a miscarriage of justice.³

The District Court hearing

[3] Mr Whitehira and Mr Maaka both gave evidence. The Judge was also shown clips from Warehouse CCTV footage, though none captured the actual incident that was the subject of the charge.

[4] Mr Whitehira described observing Mr Maaka inside the store, becoming suspicious and approaching him. He suspected Mr Maaka of stealing a phone. He warned Mr Maaka that he would call the Police if Mr Maaka did not produce the phone. Mr Maaka was dismissive of Mr Whitehira and walked out of the store. This exchange was shown on one of the CCTV clips.

[5] Mr Whitehira followed Mr Maaka out of the store. What happened next was not captured on any CCTV footage. Mr Whitehira said that he was about 10 metres behind Mr Maaka. They walked about 50 metres to the edge of the complex where The Warehouse is situated. Mr Whitehira was trying to connect to the Police on his cellphone. The Police had just answered the call when Mr Maaka turned around and confronted Mr Whitehira. He spoke to him in a challenging way. Then he forcefully pushed Mr Whitehira on the chest. Mr Whitehira lost his balance and fell against a

_{building. Mr Whitehira described Mr Maaka punching him with “some sort of flurry}

¹ _{Crimes Act 1961, s 192(1)(c).}

² _{NZ Police v Maaka DC Papakura, CRI-2014-055-000727.}

³ Criminal Procedure Act 2011, s 232(2)(b).

combination, hooks, punches” while he was still up against the building. He guessed at about half a dozen blows, some of which he blocked or deflected. He also threw some punches of his own in self-defence. Mr Maaka then walked off. Mr Whitehira resumed his telephone call to the Police and returned to the store to wait for them to arrive. His return into The Warehouse was captured on CCTV.

[6] In cross-examination Mr Whitehira described the punches as being thrown “with grievous intent and ... with everything [Mr Maaka] had.” On a scale of 1-10 with 10 being the hardest force he rated the punches at 10.

[7] There was no medical evidence of injuries to Mr Whitehira. He claimed that there was “possibly” redness or bruising on his arms. A month after this incident, when he had had time off work because of pain, an x-ray showed a micro-fracture to his lower left rib, which he attributed to the fall.

[8] Mr Maaka denied touching Mr Whitehira. His account was that when he left the store he had the stolen phone underneath his arm. He could hear Mr Whitehira behind him calling the Police. He pulled the phone out from underneath his left arm then turned around and walked towards Mr Whitehira. Mr Maaka said that there were other people nearby. When Mr Maaka was still about two metres away Mr Whitehira stepped back, turning somewhat to the side and slipped over. Mr Maaka asked Mr Whitehira if he was alright and Mr Whitehira got up and replied “You wait”. Mr Whitehira walked back towards the store and Mr Maaka waited for some minutes. When nothing happened he put the phone underneath a car and left the carpark.

[9] Mr Maaka attributed the incident to Mr Whitehira tripping over his long pants. He said in cross-examination that Mr Whitehira had loose pants on and he thought that they had caused him to trip over. I note here that the CCTV footage (which I have seen) shows Mr Whitehira wearing a pair of long baggy pants but does not show Mr Whitehira pulling at or holding up his pants.

[10] The Judge set out the events leading up to Mr Maaka leaving the store, shadowed by Mr Whitehira. She recorded Mr Whitehira’s evidence of being pushed and punched. She recorded Mr Maaka’s account of the incident, specifically noting

his claim that Mr Whitehira had been holding his pants up and that could have been a cause of him falling over. Then she turned to the question of credibility:⁴

In effect who do I believe? Do I believe Mr Whitehira or do I believe you Mr Maaka? I accept Mr Whitehira’s evidence. I thought he was a credible witness and reliable. I had some doubts about your evidence. Mr Maaka I do not believe you were telling the truth. Where the truth actually lies in this case is, in my view, somewhere in the middle. I do not doubt that you gave Mr Whitehira a push and as a result he fell over. I also find that you were very aggressive and that you may have sworn at him the way that you did but I do not accept that part of Mr Whitehira’s evidence that you effectively reigned [sic] punches on him for any period of time. Mr Whitehira was frank in the sense that he acknowledged that he punched you back and I would make any finding in respect of this case that you did touch Mr Whitehira and you did give him a push, so much that he fell over and that you did punch him perhaps two or three times in the same way as he punched two or three times in return.

(emphasis added)

Appeal

[11] Mr Brickell submitted that the Judge’s assessment of the evidence had resulted in a miscarriage of justice. Mr Brickell argued that the Judge had erred in her finding that Mr Whitehira was a reliable and credible witness, arguing that this conclusion was not open to her given that she had expressly rejected a substantial part of Mr Whitehira’s evidence.

[12] Under s 232(2)(b) a first appeal court must allow a first appeal if, in the case of a judge alone trial, the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice occurred. A miscarriage of justice means any error, irregularity or occurrence in relation to or affecting the trial that created a real risk that the outcome of the trial was affected or resulted in an unfair trial or a trial that was a nullity.⁵

[13] It is apparent that the Judge did not accept Mr Maaka’s account. It was, of course, open to her to do so, though she gave no specific reason for her decision. Having rejected Mr Maaka’s account the Judge then had to determine whether the

_{charge was proven on the basis of Mr Whitehira’s evidence and the CCTV footage.}

⁴ _{At [9].}

⁵ Criminal Procedure Act 2011, s 232(4).

In doing so she was not obliged to accept the whole of Mr Whitehira’s evidence.

She was entitled to accept part of his evidence and reject other parts.

[14] She clearly did not accept a critical part of Mr Whitehira’s evidence. The stark contrast between his account of having powerful punches rained on him clearly seemed implausible to the Judge, and it is obvious why that would be. The assault that Mr Whitehira described was a very serious daylight attack in a carpark where there were shoppers coming and going. He had no visible injuries, there were no photographs taken at the time and he did not seek medical attention for some weeks. The CCTV footage of him walking back into the shop does not indicate any pain or even discomfort. Had the punches really been a “10” then one would expect to see evidence of injuries and of discomfort, at the least.

[15] The Judge was therefore right to be wary of Mr Whitehira’s description of the assault. However, having rejected the most significant part of his account and in the absence of any external evidence, it is difficult to see the basis for concluding that there was an assault of any kind. On the state of the evidence it must have been reasonably possible that Mr Maaka’s account was correct, with the result that the Crown failed to prove the charge beyond reasonable doubt. For this reason I am satisfied that there was an error in the Judge’s assessment of the evidence which has led to a miscarriage of justice.

_{[16] The appeal is therefore allowed.}

P Courtney J